Kisor v. Wilkie and the Next Chapter in Administrative Deference
By John Grimm & Guest Contributor Mark Davis
The Supreme Court recently decided Kisor v. Wilkie,[1] a case that addresses when courts are required to defer to agencies’ interpretations of their own rules. The general rule that courts defer to an agency’s reasonable interpretation of its own regulations when they are ambiguous was articulated in the case Auer v. Robbins[2] and is referred to as Auer deference. Auer deference has been subject to criticisms that it allows agencies to issue what amount to new regulations without going through the rulemaking process and that it is an abdication of the judicial role of interpreting the law.
Supreme Court Potentially Guns Down Thousands of Firearms Convictions
By Stuart Berman
Guest contributor
The number of firearms available in the United States has nearly tripled over the past two decades, to the point where firearms outnumber people. Yet the Second Amendment is not limitless. The federal criminal code makes it unlawful for “prohibited persons” to possess a firearm: convicted felons (specifically, persons convicted of a crime punishable by imprisonment for a term exceeding one year); fugitives; drug addicts; persons adjudicated as mental defectives or committed to mental institutions; unlawful aliens; persons dishonorably discharged from the military; persons who renounced U.S. citizenship; persons subject to certain restraining orders; and persons convicted of misdemeanor domestic violence. A person who “knowingly violates” these prohibitions faces up to 10 years in prison in most cases, and up to life under certain circumstances.
Does “knowingly” mean the government must prove only that the defendant fell into an enumerated category and knowingly possessed a firearm? Or must the government also prove that the defendant knew he was a prohibited person? Read More…
The Janus decision should not be a surprise
Two years ago, we awaited the appointment of a successor to the empty seat on the U.S. Supreme Court that resulted from the death of Justice Scalia. An early casualty of a tie votes occurred in Friedrichs v. California Teachers Association, No. 14-915. Many public employers and employees had their eyes on the case, which involved the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Read More…
Seventeen Days to Go and Two Potential Blockbuster Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
It’s time for the Annual* “Blockbuster” Court of Appeals decision watch. Three years ago, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline of August 31st for deciding all cases in the term, the Court had only four cases left to decide. Two years ago, with two weeks before the Court’s deadline, there were 11 decisions left undecided. With a little more than two weeks to go before this year’s deadline, nine (9) decisions remain undecided, per the “Pending Cases” page on the Court of Appeals’ web site, with four (4) of those cases related to the topic of juvenile life sentences (that will likely involve some form of consolidated opinion, or opinions that will cross-reference each other). Of these 9 cases, one is civil, five are criminal, and three involve an Attorney Grievance matter. A listing of these cases’ Questions Presented from the Court of Appeals’ website, can be found at the bottom of this post.
Judge Niemeyer’s dissent is the real headline in Maryland political gerrymandering case
By Steve Klepper (Twitter: @MDAppeal)
Today, a three-judge panel of the U.S. District Court for the District of Maryland stayed proceedings in Maryland’s political gerrymandering case, Benisek v. Lamone, pending the Supreme Court’s decision in the Wisconsin political gerrymandering case, Gill v. Whitford. The real headline, though, is Fourth Circuit Judge Paul Niemeyer’s dissent, which could have real implications for Gill. Read More…
Rules Committee recommends ending ethics prohibition on “specialist” label
By Michael Wein
In a report released online on Wednesday, the Maryland Rules Committee recommended to the Maryland Court of Appeals that attorneys be no longer prohibited from advertising themselves as “specialists.” This was proposed as an amendment to Rule 19-307.4, Communication of Fields of Practice. (If you’ve never heard of Chapter 19, which now incorporates the Maryland Lawyers’ Rules of Professional Conduct (MLRPC), you’re in good company, as the reorganization only took effect on July 1.) A briefing on why this change has been suggested can be found in my previous extensive write-up two years ago on this Blog.
Regulatory deference, not restrooms, at issue in high-profile petition
By John Grimm
One of the most closely watched cert petitions before the U.S. Supreme Court in its new term is G.G. v. Gloucester County School Board, scheduled for conference on October 14. The Fourth Circuit decision — which gained national attention in April — was a major milestone for transgender rights, but the petition raises only a narrow question unrelated to civil rights: whether the Court should abandon a relatively obscure, but increasingly controversial, doctrine of administrative law. G.G. is a striking example of how seemingly dry concepts of administrative procedure can have unexpected relevance outside of traditional “administrative law” practice areas.
